Cross v. Custom Contracting Inc, (19-cv-12516).

California photographer Jeffery Cross accuses Custom Contracting, a home remodeling business in Arlington, of using one of his photographs, depicting a kitchen sink and shelves, on its website. Cross, who makes no concrete claims of access (merely stating that “[u]pon information and belief, Defendant located the Copyrighted Work on the internet…”) alleges contributory and vicarious infringement as well as direct, apparently seeking to cover circumstances where Custom Contracting obtained the photograph from someone other than Cross. I note that there are also no factual allegations related to actual or constructive knowledge of Cross’ copyright or of any acts that would show inducement or material contribution, or anything to suggest that the infringement was willful, although such is generally alleged. I would also note that the exhibit alleged to show the infringing use includes five web pages, of which two appear to be identical copies from a Bob Villa (of “This Old House” fame) website and the other three appear to be identical pages from Custom Contracting’s website that include a photo credit to indulgy.com (which is no longer active).

This complaint is similar to a rapidly-growing number of copyright cases involving photographs found on the internet. As image recognition software has improved, a business model of combing the web and bringing suit for unlicensed use of copyrighted images has developed, relying in large part on the simple existence of an alleged infringement and the potential for high statutory damages and attorneys fees to drive quick settlements that are often well out of proportion to the actual harms that the use might have caused. A small number of firms account for the vast majority of complaints along these lines, at least in my experience, including one New York lawyer who has filed more than 1100 such copyright suits since being admitted to the bar in 2015. While I have no objection to photographers protecting their rights, and strongly recommend people not download and use photographs from the internet without first confirming their right or license to do so, I hope to see some pushback on these “information and belief” – type of complaints, which do not seem to meet the Twombly/Iqbal requirement that a complaint show plausible factual allegations that, accepted as true, are sufficient to state a claim for relief that is plausible on its face. These complaints in essence assert that the mere existence of an identical (or, in some cases, merely similar) photograph as a copyrighted work are enough to state a claim for infringement, with no analysis of whether the alleged infringer copied the photograph from the copyright holder, obtained it elsewhere, or created it independently.

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